The United States anticipates receiving more than 368,000 new refugees and asylum claims in Fiscal Year (FY) 2020. Pursuant to Section 207(d) of the Immigration and Nationality Act (INA), the President proposes resettling up to 18,000 refugees under the new refugee admissions ceiling, and anticipates processing more than 350,000 individuals included new asylum claims. This refugee admissions ceiling reflects the urgent need to address the border security and humanitarian crisis caused by the massive surge of aliens seeking protection at the U.S. southern border. It also reflects the backlog of nearly one million asylum-seekers who are awaiting adjudication of their claims inside the United States.
Who is a Refugee?
Under Section 101(a)(42) of the INA, a refugee is an alien who, generally, has experienced past persecution or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Individuals who meet the statutory definition may be considered for either refugee status under Section 207 of the INA if they are outside the United States, or asylum status under Section 208 of the INA, if they are already in the United States or present themselves at a U.S. port of entry. Both refugee and asylum status are forms of humanitarian protection offered by the United States.
Individuals outside the United States seeking admission as a refugee under Section 207 of the INA are processed through the U.S. Refugee Admissions Program (USRAP), which is managed by the Department of State in cooperation with the Department of Homeland Security (DHS) and Department of Health and Human Services (HHS). Those admitted as refugees are eligible for U.S. government-funded resettlement assistance, which is discussed in section III. Individuals in the United States seeking asylum status under Section 208 of the INA are processed by DHS and, in certain cases, by the Department of Justice (DOJ)’s Executive Office for Immigration Review (EOIR, also known as the immigration court system). Asylum applicants are not eligible for resettlement assistance through USRAP but are eligible for certain other forms of assistance and services run by state, private, and non-profit agencies, and they may apply for employment authorization.
Since the passage of the Refugee Act in 1980, which incorporated this definition of refugee into the INA, the United States has accepted more than 3.7 million refugees and asylees. In FY 2019, the United States anticipates admitting approximately 30,000 refugees for resettlement and granting asylum to approximately 46,000 individuals.
Security and Humanitarian Crisis at the U.S. Southern Border
In this FY to date, enforcement actions on the U.S. southern border with Mexico surpassed 800,000, an increase of over 100 percent over the same time the previous fiscal year. Large groups of inadmissible aliens, sometimes in the hundreds, arriving together strain DHS processes and divert DHS resources to providing humanitarian relief. Almost 200 groups of aliens, each comprising over 100 members (mostly Guatemalan and Honduran families), have been apprehended between ports of entry so far this fiscal year. In May 2019, DHS reached an unfortunate record when more than 1,000 migrants illegally entered the United States in the largest single group ever encountered.
This dramatic increase in the number of aliens encountered along or near the U.S. southern border with Mexico corresponds with a sharp increase in the number and percentage of those who claim fear of persecution or torture when apprehended or encountered by DHS, as shown in the tables below. Over the last ten FYs, the number of credible fear claims increased by eighteen times, the number of new asylum claims with DHS increased by almost five times, and the number of new asylum claims in the immigration courts increased by more than four times.
The majority of aliens encountered along the U.S. southern border now come from Guatemala, Honduras, and El Salvador, where poor economic conditions and high levels of generalized violence, while not grounds for asylum under U.S. law, are important “push factors.” At the same time, certain U.S. laws, judicial rulings, and policies create “pull factors,” including the low threshold for determining credible fear, the 1997 Flores Settlement Agreement (FSA), and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). While well-intentioned, these have helped create a humanitarian crisis by providing clear incentives to attempt the arduous and dangerous journey north through Mexico and to seek entry to the United States, particularly when applying as a “family unit” with a child. Aliens believe that DHS will release them quickly and that they will be allowed to stay in the United States indefinitely, with work authorization, while pursuing claims for humanitarian protection.
Until Congress can act to address these pull factors, the Administration has sought to exercise existing legal authorities to reduce them. These efforts include reaching agreements on migration and border security with Guatemala, El Salvador, and Honduras, including Asylum Cooperation Agreements (ACAs); the Migrant Protection Protocols, which provides for certain aliens to remain in Mexico while awaiting their immigration court hearings; an Interim Final Rule on Asylum Eligibility and Procedural Modifications, which provides that aliens who cross the U.S. southern border without having sought protection in at least one country en route are ineligible for asylum, with certain limited exceptions; and the Final Rule on Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, which addresses the FSA. However, legislation remains necessary to address the FSA and TVPRA so they do not continue to incentivize child exploitation and dangerous journeys.
Rising Protection Claims and Backlog
According to the UN High Commissioner for Refugees (UNHCR), the United States led the world in the number of new asylum applications received in calendar years 2017 and 2018.
In FY 2018, DHS received nearly 100,000 new credible fear cases and over 160,000 new affirmative asylum cases, while the immigration courts received 163,156 new asylum filings.
These new cases simply added to the lengthy backlog of pending claims, undermining the integrity of the asylum system. They delay the grant of asylum to individuals who are legitimately fleeing persecution and have valid claims. Further, such delays are a pull factor for illegal immigration. By providing protection from removal, they create an incentive for those without lawful status to enter and remain in the United States. Asylum applicants also may obtain employment authorization after their asylum applications have been pending for six months, creating an incentive to file frivolous or fraudulent asylum applications.
The increasing number of asylum claims also represents a cost to U.S. government benefits programs. While asylum applicants are not eligible for the Reception & Placement assistance offered to refugees and discussed in section III, those who have been granted asylum status under Section 208 of the INA are eligible for other assistance and services funded by the HHS Office of Refugee Resettlement (ORR). This is in addition to mainstream federal means-tested public benefits for which refugees and asylees are eligible, even ones otherwise unavailable to lawful permanent residents, as well as any other assistance they might receive under state law. For FY 2020, ORR predicts 45,600 asylees will be eligible for such assistance and services; for FY 2021, ORR predicts 48,000 asylees will be eligible.
DHS continues to fill new positions within the USCIS Asylum Division devoted to eliminating the backlog of nearly 540,000 affirmative asylum cases expected at the end of FY 2019. In order to address this backlog and prevent it from again increasing, however, DHS will continue to shift some refugee officers to assist the Asylum Division, consistent with Section 5 of Executive Order 13767 on Border Security and Immigration Enforcement Improvements.
DOJ continues to hire new immigration judges and support staff to reduce the case backlog in the immigration court system, which will include almost 475,000 pending asylum cases at the end of FY 2019. It has hired 150 new immigration judges since the beginning of FY 2018, and it continues to seek additional courtroom space to increase its adjudicatory capacity. It has also implemented process improvements, such as the use of video teleconferencing, to maximize its existing adjudicatory capacity and ensure that the pending caseload does not increase at an even faster rate.
Security Vetting in Refugee Admissions
The December 2017 National Security Strategy says the United States “will enhance vetting of prospective immigrants, refugees, and other foreign visitors to identify individuals who might pose a risk to national security or public safety” and “will set higher security standards to ensure that we keep dangerous people out of the United States.”
As directed by Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry Into the United States, the U.S. government conducted a review of the USRAP and identified additional screening and vetting procedures to enable departments and agencies to more thoroughly review refugee applicants to identify potential threats to public safety and national security.
This review, as well as other efforts to improve the efficiency and integrity of processing applicants for refugee resettlement, have improved security in USRAP. These enhanced security measures have lengthened processing time for some cases, but they are critical to ensure confidence that refugees granted resettlement in our country are thoroughly vetted.
DHS/USCIS Credible Fear Caseload FY 2009-2018
|Fiscal Year||New Receipts||Fear Found||Fear Not Found||Closed||Pending at end of FY|
DHS/USCIS Asylum Caseload FY 2009-2018
|Fiscal Year||New receipts (individuals)||Receipts Pending at end of FY (individuals)|
DOJ/EOIR Immigration Court Asylum Caseload FY 2009-2018
|Fiscal Year||New filings (individuals)||Pending at end of FY (individuals)|
Refugee Admissions and Asylum Grants Since 1980
|Fiscal Year||Refugee Arrivals||Individual Asylum Grants||Annual Totals|